People v. Davis

• Decision Date: 02 May 1978
• Citation: 44 N.Y.2d 269,405 N.Y.S.2d 428,376 N.E.2d 901
• Parties: , 376 N.E.2d 901 The PEOPLE of the State of New York, Respondent, v. Fred DAVIS, Appellant. The PEOPLE of the State of New York, Respondent, v. Alexander GEORGE, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 428

405 N.Y.S.2d 428

44 N.Y.2d 269, 376 N.E.2d 901

The PEOPLE of the State of New York, Respondent, v. Fred DAVIS, Appellant.

The PEOPLE of the State of New York, Respondent, v. Alexander GEORGE, Appellant.

Court of Appeals of New York.

May 2, 1978.

Judith F. Bowman and William E. Hellerstein, New York City, for appellant in the first above-entitled action.

Lewis R. Friedman, Jack T. Litman and Herman Kaufman, New York City, for appellant in the second above-entitled action.

Mario Merola, Dist. Atty. (Joyce Marie Andren and Alan D. Marrus, New York City, of counsel), for respondent in the first and second above-entitled actions.

OPINION OF THE COURT

FUCHSBERG, Judge.

Fred Davis and Alexander George have been found guilty of selling four glassine envelopes of heroin to an undercover police officer for $19 and of concomitantly possessing 11 additional envelopes containing the same drug. Each defendant has been sentenced to two concurrent indeterminate terms of imprisonment not to exceed seven years. The Appellate Division, First Department, Presiding Justice Francis T. Murphy dissenting, has affirmed.

We focus on two of the issues raised on this appeal. ¹ One is the claim that defendants were denied a fair trial when the trial court denied motions to preclude cross-examination on their prior convictions. The other is that it was prejudicial error for a so-called UF 61 report containing the undercover officer's officially filed description of his reasons for making the arrests to be received in evidence on the theory that his testimony at trial had been attacked as a recent fabrication.

The first issue presents no doctrinal difficulty. Determination of the extent to which an accused may be cross-examined concerning previous criminal convictions requires a "sensitive, informed reconciliation of the interests of the People and the rights of the defendant" (People v. Sandoval, 34 N.Y.2d 371, 375, 357 N.Y.S.2d 849, 854, 314 N.E.2d 413, 417). At least two competing legal values are at stake: The People's interest in exploring the veracity of a witness, including an accused, must be balanced against the risk that the presumption that a defendant is innocent may go by the board solely because of a jury's natural tendency to conclude, despite limiting instructions, that a defendant who has committed previous crimes is either the kind of person likely to have committed the crime charged or is deserving of punishment in any event (see People v. Mayrant, 43 N.Y.2d 236, 401 N.Y.S.2d 165, 372 N.E.2d 1; People v. Dickman, 42 N.Y.2d 294, 297, 397 N.Y.S.2d 754, 756, 366 N.E.2d 843, 844; Griswold, The Long View, 51 A.B.A.J. 1017, 1021; McGowan, Impeachment of Criminal Defendants by Prior Convictions, 1970 Ariz. State L.J. 1; statistical support can be found in Kalven & Zeisel, The American Jury, pp. 124, 126-130, 144-146, 160-162). These opposing forces, however, are easier to comprehend than to apply. Required, therefore, is the exercise of a sound discretion on the part of the Trial Judge.

In the present case, before the openings to the jury both defendants' counsel invoked that discretion. They moved for an informational ruling setting limits on the District Attorney's cross-examination as to their clients' earlier criminal offenses. The motions were directed to two unenviable records. Davis' police dossier listed two convictions for assault and robbery antedating the crime for which he was on trial by six and seven years respectively, another for driving while intoxicated, yet another for grand larceny committed about four years before the trial, and, finally, two more recent episodes (occurring within two years) one of which was highlighted by possession and the other by sale of drugs. George's pedigree was shorter but spread over more years. It included a 13-year-old sodomy charge which had resulted in a youthful offender adjudication for assault and a conviction for grand larceny only a year later; in the ensuing 12 years his only reported offenses were one instance of gambling and, most recently, three drug sales.

The Trial Judge, deferring decision, indicated generally that, as "just a trooper (in) the field", he would "stand on what the highest court of (the) state holds." When pressed for a determination upon renewal of the motions at the end of the People's case, the Judge denied them while expressing the view that he was "barred" from exercising discretion unless the prior crimes were extremely similar as to modus operandi or "if the cross-examiner brings out every dirty detail only to inflame (the) jury". The court thus made clear that any restraints it might thereafter impose would not preclude the cross-examiner from resorting to any of the prior crimes but would only apply to future and undescribed excesses if and when they occurred. Defendants thereupon informed the court they would rest "because of (this) ruling." They did not take the stand.

As we read the record as a whole, we are compelled to conclude that the court did not exercise the requisite discretion. Its wholesale rejection of defendants' applications was not the result of an assessment of the probative relevancy of each conviction or of its potential for impermissible prejudice, or of whether and to what extent each outweighed the other. It made no effort to distinguish between the two cases. Vocally at least, it gave no thought to the possibility of limiting multiple convictions as an available means to lessen the likelihood that inferences of propensity might outbalance the need to expose lack of veracity.

True the ruling here was made considerably before we handed down People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413, supra, where we articulated the concerns which permeate such considerations. And apparently the court labored under the mistaken impression that our earlier decision in People v. Sorge, 301 N.Y. 198, 93 N.E.2d 637, permitted it to restrict cross-examination as to previous crimes in no instances other than those where the previous crime or a uniform history of offenses was similar to those charged.

Sandoval did not create a new rule of substantive law. In sanctioning a procedural device for the early exercise of a discretion already extant in the trial courts (see People v. Caviness, 38 N.Y.2d 227, 233, 379 N.Y.S.2d 695, 700, 342 N.E.2d 496, 500; but cf. People v. Zabrocky, 26 N.Y.2d 530, 535, 311 N.Y.S.2d 892, 895, 260 N.E.2d 529, 531), it looked to the more efficacious accommodation on a case-by-case basis of jurisprudential considerations whose existence had long been recognized (e. g., People v. Schwartzman, 24 N.Y.2d 241, 247, 299 N.Y.S.2d 817, 822, 247 N.E.2d 642, 645, cert. den. 396 U.S. 846, 90 S.Ct. 103, 24 L.Ed.2d 96; People v. Sorge, supra, 301 N.Y. pp. 201-202, 93 N.E.2d 637, 639; People v. Webster, 139 N.Y. 73, 84, 34 N.E. 730, 733; People v. Tice, 131 N.Y. 651, 657-658, 30 N.E. 494, 496; People v. Duffy, 44 A.D.2d 298, 301, 354 N.Y.S.2d 672, 674 (Shapiro, J.), aff'd 36 N.Y.2d 258, 367 N.Y.S.2d 236, 326 N.E.2d 804, cert. den. 423 U.S. 861, 96 S.Ct. 116, 46 L.Ed.2d 88).

Here scant attention was paid to the nature of the varied offenses. ² The probative value of specific convictions for crimes whose nature was self-evident were not evaluated on the issue of credibility. For instance, the effect of a factor such as the age of each of the older convictions, which, while not necessarily determinative of a court's discretion, might be found to have diminished in probative value with the passage of time, was not explored. Also, though proof of the commission of prior offenses similar to those for which a defendant is tried demands close scrutiny, defendants' prior drug offenses received no meaningful attention; indeed, the court expressly refused to consider them separately, insisting "I am not going to draw a distinction". As Justice Murphy's dissent aptly points out, this void in exercising discretion is all the more glaring since the matching crimes here involved violations of the narcotics law, whose offenders are widely believed to be unusually habitual in their practices (People v. Sandoval, supra, 34 N.Y.2d pp. 377-378, 357 N.Y.S.2d pp. 855-856, 314 N.E.2d pp. 417-418; see, also, People v. Carmack, 44 N.Y.2d ---, 405 N.Y.S.2d 446, --- N.E.2d ----).

Under the circumstances, it cannot be said that the default in exercising discretion did not have an effect disproportionate to its probative worth on the issue of credibility. Nor can we gainsay the assertion that it deterred the defendants from taking the witness stand. The entire defense was based upon a claim that the case was a "frame-up" against individuals whose unsavory records made them easy prey. Whatever the merits of that theory, its chance of success as a practical matter was reduced to nought by their failure to testify. The...